January 8, 2006

Here's the NYT editorial about Samuel Alito, whose confirmation hearings begin tomorrow. It doesn't oppose him, but highlights areas of concern. Does that mean they won't oppose him, after the hearings are over, and it becomes possible to say, we said we were concerned about these areas, and his answers didn't satisfy us?

Let's remember what happened with John Roberts, whose performance at the confirmation hearings is now held up as a model of near-perfection. Here's the NYT editorial, "Too Much of a Mystery," that was written after the hearings:

John Roberts failed to live up to the worst fears of his critics in his confirmation hearings last week. But in many important areas where senators wanted to be reassured that he would be a careful guardian of Americans' rights, he refused to give any solid indication of his legal approach. That makes it difficult to decide whether he should be confirmed. Weighing the pluses and minuses and the many, many unanswered questions, and considering some of the alternatives, a responsible senator might still conclude that he warrants approval. But the unknowns about Mr. Roberts's views remain troubling, especially since he is being nominated not merely to the Supreme Court, but to be chief justice. That position is too important to entrust to an enigma, which is what Mr. Roberts remains....

If he is confirmed, we think there is a chance Mr. Roberts could be a superb chief justice. But it is a risk. We might be reluctant to roll the dice even for a nomination for associate justice, but for a nomination for a chief justice - particularly one who could serve 30 or more years - the stakes are simply too high. Senators should vote against Mr. Roberts not because they know he does not have the qualities to be an excellent chief justice, but because he has not met the very heavy burden of proving that he does.

I expect the editorial at the close of the Alito hearings to follow that pattern. Of course, there's this line about Roberts:

We might be reluctant to roll the dice even for a nomination for associate justice, but for a nomination for a chief justice - particularly one who could serve 30 or more years - the stakes are simply too high.

But that's easily tweaked:

We might be reluctant to roll the dice even for other nominations to the Supreme Court, but for a nomination to replace Sandra Day O'Connor, whose centrist vote has held the Court in balance for many years, the stakes are simply too high.

But the Times is right to raise concerns about Alito:

Judge Alito's confirmation hearings begin tomorrow. He may be able to use them to reassure the Senate that he will be respectful of rights that Americans cherish, but he has a lengthy and often troubling record he will have to explain away. As a government lawyer, he worked to overturn Roe v. Wade. He has disturbing beliefs on presidential power - a critical issue for the country right now. He has worked to sharply curtail Congress's power to pass laws and protect Americans. He may not even believe in "one person one vote."

The White House has tried to create an air of inevitability around Judge Alito's confirmation. But the public is skeptical. In a new Harris poll, just 34 percent of those surveyed said they thought he should be confirmed, while 31 percent said he should not, and 34 percent were unsure. Nearly 70 percent said they would oppose Judge Alito's nomination if they thought he would vote to make abortion illegal - which it appears he might well do.

Alito must know that he needs to endorse the precedential importance of the right of privacy (the way Roberts did), or all hell will break loose. I expect Senator Specter to assist him in laying in that cornerstone of confirmation as early as possible in the hearings. I expect the abortion issue to be packaged away neatly enough, though various Democrats will continue, ineffectually, to harp on it.

But there are plenty of other issues to raise, including many timely and important matters about the scope of executive power. We have every reason to think that Presidents pick nominees who put a high value on executive power, and this President is pushing the limits of executive power and is therefore especially motivated to find judges who will support him. The Senators really do need to defend the legislative branch with some tough questioning here. Listening to the debate this week will give us all a good opportunity to think about what the balance of power between the President and Congress should be.

38 comments:

It would be nice to se the abortion issue go away. What we really need are judges who will not allow this country to commit suicide by doing things such as extending the U.S. Constitution to the battlefield.

Its all fine for countries such as Canada or Belguim or Spain to surrender. Those countries don't matter. If the United States surrenders that is another matter. Judges like Alito will be the bullwork against leftist weakness.

I have my doubts about Senatorial competence when Ted Kennedy makes a reference to President Goldwater during one of his pontifications.

The real question for our culture is to establish the difference between rights and privileges. Too often the distinction is blurred!

It is a mystery to me why the Democrats place so much emphasis on Roe V Wade. If it were put to a vote I believe a majority of Americans would vote for abortion under certain circumstances; rape, incest, mother's health. I don't think a majority of voters would approve of abortion as a means of birth control. The argument being that there are other methods of birth control available other than D and C.

Regarding the Constitution on the battlefield, it is already there. That is why POTUS is the Commander-In-Chief and not the Congress or Judiciary. Checks and balances are one thing. When they are used to affect the outcome of a war or battle, that is not what the founding fathers intended.

Slightly off topic, but you quote the NYT on Chief Justice Roberts' responsibilities so I'll throw this in. If the FISA Court judges are leaking info to the media does he have the administrative authority to remove them, possibly limit their future perview?

Oh...heavens no...we wouldn't want the Constitution to extend to the battlefield, especially considering that the entire world, including our inboxes, telephones and homes are part of the WOT. Please sloanasaurus. Nobody has the right to absolute power, although I lament to find that many in the right blogosphere are more than happy to let Bush edge closer and closer towards that.

Concerning Alito, the simple fact of the matter is that Alito has held some pretty controversial views in the past. Does he hold those same views now? Who knows. But have you changed your mind much on social issues much since you were 35?

I also agree with the editorial when it says Alito should be questioned about his honesty, since he somewhat suggested that he told people what they wanted to hear on that 85 job application.

Now, unlike other Dems, I didn't have a problem with Roberts. In fact, I liked his record and thought it showed he'd be a very fair, reasoned voice on the SCOTUS. However, Alito's record demonstrates he could much more like a Bork...willing to say certain things to quell fears, but he's thinking something completely opposite. I could be wrong, but this is just how it feels. And the whole CAP thing certainly doesn't help his cause.

The NYT article, by reference to a Harris poll, suggests that the public is sceptical about Judge Alito's confirmation. For a significant number of respondents to be "not sure" seems to me to be a perfectly sensible attitude for people who were being polled about a month before the confirmation hearings.

The Harris poll referred to in the NYT was an online poll conducted between Dec 8 and 14. Although the results were released Jan 4th.

http://www.harrisinteractive.com/harris_poll/index.asp?PID=625

The Harris poll appears to have weighted the democrats more heavily than republicans. That is to say, if 36% of the sample was Republican, and 35% was Democrat and 29% was Independent (as indicated in the methodology section at the bottom of the poll). Then 38% (up from 34%) of the sample should be in favor of Alito's confirmation and 31% would not be in favor.

I am not making any assumptions about what would have happened if more Republicans had been polled.

The methodolgy section of the poll states that there were 620 republicans, 614 democrats and 510 independents polled. My question is about the weightings that were applied to each subsample to arrive at the final results. Because that step seems kind of opaque to me.

I am not a poll expert. But I do like to look at primary documents and, in this case, try to work through the numbers.

Anyway, my main point was that it is good that people wait till the hearings before reaching a final decision on Judge Alito. I would add that I hope that people watch as much of the actual testimony as possible rather than forming opinions based just on news reports about the hearings.

Sloanasaurus: "Its all fine for countries such as Canada or Belguim or Spain to surrender. Those countries don't matter." The arrogance of this statement is disturbing.

On another note, I find it odd that Supreme Court nominees would try to avoid explicitly saying if they plan to overturn Roe v. Wade.

If they're anti-abortion, and they truly believe that the majority of the country supports that position, then why would they try to obscure their point of view?

Or conversely, if they're anti-abortion but they think the majority opposes them, then why would they try to lie their way onto the supreme court, only to impose their views against the will of the majority?

Here's a better question: all you lefties: do you believe Roe v. Wade is a good decision?

This question is not whether you believe abortion should be legal. No one would say that nine-year-olds should be able to buy beer (except the occasional nine-year-old, perhaps). But I thing we can all agree that this issue -- one concerning what people can freely put into their bodies -- is not a constitutional issue. Many states would allow at least some abortions without the Supreme Court, just as all states would prohibit liquor sales to nine-year-olds.

I would wager that none of the above commenters who are so anxious about Roe v. Wade being overturned have ever read Roe v. Wade, or even a few of its paragraphs. It's truly awful. It's sophomoric. It's judicial legislation in the worst, anti-common law tradition. It references nothing in the Constitution itself, manifestly so, grasping instead at inferences from inferences that five justices found in something called a penumbra.

I would further suggest that the above commenters know nothing about Alito, and only want to oppose him because he is a Bush nominee. Prove me wrong.

quxxo (and Noah): Perhaps the Congress might pass a law prohibiting certain actions of the president. Perhaps the Congress might specifically withhold money from actions the President wishes to take.

These avenues haven't occurred to you? I am shocked -- SHOCKED! Let's face facts: you don't want THIS president to do certain things. You can't stop him because the Congress supports his efforts and the people support his efforts. You therefore turn to the courts because it is the only way via which your minority views can be inflicted on the majority.

There is a place for minority protections in this country. Few disagree. What YOU, my leftist friends, want is to impose your minority program on the majority. This is entirely different.

I have bad news. It didn't work for the (in my view, correct) people who wanted to limit the absurd government expansion of the progressive era. It won't work for you for precisely the same reason: ramming an unpopular program through the courts won't work for people who disagree with the majority in a democratic/representative regime. My advice: get out of your lefty echo chambers and advance your cause, with reasonable arguments, to the people. (I hope you don't heed this advice because your program is unworkable -- as the seventies showed so dramatically -- and because we are in a serious war that really needs grownups in charge.)

"Here's a better question: all you lefties: do you believe Roe v. Wade is a good decision?"

Yes.

"I would wager that none of the above commenters who are so anxious about Roe v. Wade being overturned have ever read Roe v. Wade, or even a few of its paragraphs. It's truly awful...It's judicial legislation in the worst, anti-common law tradition. It references nothing in the Constitution itself, manifestly so, grasping instead at inferences from inferences that five justices found in something called a penumbra."

I wonder what you were reading?Here's some excerpts that discuss common law and, in particular, the 14th Amendment.

9th and 14th Amendments:

Liberty. 14th Amendment. Substantive Due Process.

Stewart:"Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment."

MR. JUSTICE BLACKMUN delivered the opinion of the Court.

The Common Law:

"3. The common law. It is undisputed that at common law, abortion performed before "quickening" -- the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy -- was not an indictable offense. The absence of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins."

"This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

14th Amendment:

Stewart:"As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." Poe v. Ullman, 367 U.S. 497, 543 (opinion dissenting from dismissal of appeal) (citations omitted). In the words of Mr. Justice Frankfurter, "Great concepts like . . . `liberty' . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged." National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (dissenting opinion).

geoduck2: Good. You can copy and paste. That's good. I would bet you your entire savings that you have never read the actual opinion.

Now, show me the part where there is anything in the Constitution regarding abortion.

Do you really think that a law against aboriton is an arbitrary imposition" pr a "purposeless restraint"? Further, whence comes common law? Do federal courts very often deal in common law? Something tells me you may be less than a legal scholar. Good job on the copying and pasting, though. I mean it. I really do.

there is an enormous contrast between the relative lack of concern regarding past appointment of certifiably liberal justices and the hysteria involving candidates to their right. aside from left and right, it would be a pleasant change if justices ceased manufacturing law based on personal opinion, letting the american people decide and real diversity rule.

Amendment IX. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Amendment XIV...[in pertinent part] "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."..."The CONGRESS shall have power to enforce, by appropriate LEGISLATION, the provisions of this article."

Tell me, then: How do the Ninth and 14th Amendments cover abortion but not the purchase of alcohol by nine-year-olds?

I assert that the ruling, while it may MENTION common law, does not actually respect common law, nor for that matter statutory law.

"common law. Function: noun: a body of law...based on custom and general principles and embodied in case law...that serves as precedent or is applied to situations not covered by statute" -- dictionary.com

Roe v. Wade flouts common law and statutory law. Just because a third-rate, bottom-feeder Harvard grad plucked from obscurity says something is true, it don't mean it's true. Blackmun's protestations to the contrary, abortion was NOT universally legal before Roe. Moreover, if a statute is enacted criminalizing something previously allowed under common law, common law yields. Period.

Suppose I am wrong, by the way, and that abortion was universally legal before Roe v. Wade. If it was so common, why was Roe a SEACHANGE, a REVOLUTION in the law, an IMPORTANT TURNING POINT? How can it be all those things if it merely continued an existing norm?

As for the argument that you and Blackmun put forth about quickening: stoning adulterers was quite common for hundreds of years all over the world. That was the common law according to Blackmun's understanding. Ought it be the law today?

Blackmun was Harriet Miers without makeup. His decision was made up absolutely from whole cloth. It was an embarrassing blip in constitutional law. It will be overturned, the sooner the better. (Does that mean that abortion will become illegal? No, it doesn't. This is what you nutty lefties need to understand.)

"It's judicial legislation in the worst, anti-common law tradition. It references nothing in the Constitution itself, manifestly so, grasping instead at inferences from inferences that five justices found in something called a penumbra."

I'm quoting Seven Machos' original statement, in case any future readers are confused. My posts are responding to his assertion that

1) _Roe_ is "anti-common law" and

2) that SCOTUS did not reference specific Constitutional Amendments in _Roe_.

My post is simply a reiteration of the decision.

(I didn't think the facts were that controversial. One can disagree with the opinion or the analysis, but I find it odd that someone would claim that 1) Blackmun didn't reference common law or that 2) the justices didn't reference specific Amendments.)

geoduck: Your reading of the plain meaning of my words is commendable.

I hastily typed that Roe references nothing in the Constitution itself. What I should have typed was that Roe finds no direct support in the Constitution. There's nothing in the Constitution about abortion. If you've read the case, and I say you haven't, you know that the decision uses an argument about "penumbras" to get around this inconvenient fact. "Yes," says Blackmun, "I know there's nothing about abortion but if you make this inference and that inference, and you think really hard about privacy in this specific way, abortion can't be restricted, except in this legislation that we, JUDGES, are going to hereby write."

As for common law, neither you nor Blackmun have a leg to stand on. Go here:

http://www.vanderbilt.edu/SFL/quickening.htm

"This historical overview of quickening...suggests that the Roe opinion was at variance with the Anglo-American legal tradition."

"This historical overview of quickening...suggests that the Roe opinion was at variance with the Anglo-American legal tradition."

However, many legal historians and scholars do not agree with the above statements.

For evidence of this, see the writings of the following scholars.

On the common law of quickening see:

James Mohr, _Abortion in America_

also see Cornelia H. Dayton, "Taking the Trade: Abortion and Gender Relations in an Eighteenth-Century New England Village." in the _William and Mary Quarterly_. (google for the citation.)

(Or read the Amicus Brief on the history of quickening and the common law signed by many historians including James Mohr and submitted for _Casey_.)

I don't know who you are citing at Vanderbilt. However, I can testify that many legal historians have written about the common law of quickening.

It's all over the scholarly record and not obscure at all. If anybody is interested in reading the history for themselves I'm happy to reference additional research. Let me know if you want more citations.

The most important thing to understand, little fellow, is that most law is NOT constitutional. The Congress can make a law about pretty much whatever it wants. Just this once, I'll play your game. However, when you are older, I urge you to go to law school.

"Do women have a right to prevent the government from forcing them to have an abortion?" This is a totally different and dumb question. People who are 21 have the right to consume beer. Does/would the government force them to consume 35 in an hour? The right to do something is different than the government's right to MAKE YOU do something. And, by the way, if abortion is illegal, the government will be hard-pressed to require it. Next.

"[C]ould the government pass a law that forces women to undergo abortion for the purpose of population control?" No. See above. Next.

"Does this right need to be in the Constituiton before you will accept it as a fundamental Constituional liberty?" "Amendment X. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

"Can the government prevent American citizens from free travel ala the Soviet Union?" Amendment X. Also: "Congress shall make no law...prohibiting...the right of the people peaceably to assemble..." Next.

"Is it Constitutional to criminalize travel to Europe?" See above. Next.

"Or to criminalize domestic travel?" See above. Next.

"Do adults have the Constituitonal right to birth control? Can the states criminalize birth control?" Adults do not have a constitutional right to birth control. States may criminalize birth control, or not. Next.

"Is it Constituitonal to outlaw the morning after pill or the IUD?" Yes. It's also constitutional to have them legal. Next.

"Is it Constituitonal to legally force a brother to give a kidney to a dying sibling? Why not?" No. Again, you don't understand the difference between allowing something and forcing something. Perhaps you have been reading too much Lenin. Here, by the way, the 14th Amendment actually applies: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law." It is also probably a form of slavery to force one person to give body parts to another. Slavery is outlawed by the 13th Amendment. But what a stupid quesion. Don't you have school tomorrow? Next.

"Can the states criminalize heterosexual oral sex?" Yes, but they haven't really ever done that. The laws you are probably speaking about were intended to prevent homosexuality. Also, good luck enforcing that law. Look, kid, just because you don't like something, it doesn't mean it rises to the level of constitutionality. And just because the state can do something, it doesn't mean it will, or it should. I could drink a quart of Drano right now. I'm not going to. Next.

"Is the right to vote of American citizens a federal Constitutional liberty? (maybe not.)" Yes. My God. Have you ever READ the Constitution? It's absolutely all over the document, most manifestly in Amendment XXVI. Next.

"The right to own property? The right to own your income?" Fifth Amendment: "No person shall...be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Gooeyduck: If I can show you that common law prohibited abortion, which I can, and you say you can show me common law that allowed abortions, then how is it that abortion all of a sudden arose to the level of constitutional law in the early 1970s?

You lose the common law argument almost any which way because common law is, by defintion, not constitutional law. It's too bad you and Blackmun are too doltish to see this.

Any Supreme Court nominee of a Republican President --anyone whatsoever-- will face slime-mold discursions from Senate Defecrats. To pretend otherwise, by conjuring research into (say) Alito's record, or by citing "precedents" to which all must genuflect, is folly-- pure and simple. Nothing anyone says, nothing that Alito has done, is doing, or may do, will affect the Kennedy-Dean school of "hate Republicans".

After Leahy's vicious obfuscation over some four years, this current menage has already postponed "hearings" (sic) for entirely too long. Chick-a-biddy Schumer et.al. care precisely nothing for issues of character and principle, certainly not "the law" which as Holmes famously said "is what we [the Court] says it is". Get that?-- Congress is the cowpath over which lowing herds of jurists wind gently o'er the lee.

Waste four days on Reid et.al., calling up their squealing porkers. Then put in the Big A and wait for the next case. Someone's gotta sit on what we jovially call "the Bench". If Mde Ginsberg, a raging Leftist ideologue, is even marginally acceptable, the Leahys and Schumers we know and love can have no quarrel with a putative neutral like the A.

Do you really think this president is pushing the limits of executive power?

At least with regards to the WOT and national security, it doesn't seem that he is anywhere close to the actions of previous presidents during war time. Of course, this doesn't really seem like a war, to those of us who go to work and participate in our normal lives. Prior wars have required significant sacrifice from non-combatants, while this one really only affects the combatants and their families/friends.

Even a casual student of history would admit that Bush hasn't approached the actions taken by Lincoln or Roosevelt.

It appears to me that the Senate Confirmation process for supreme court nominees has taken the same Kabuki-like aspect that the presidential primary process has taken--Quite frankly, I doubt that any sentient Senator believes that a responsible and ethical jurist could or would describe how he/she would rule on an issue that might come before the bench; if my doubt is correct, then the confirmation process as it has evolved seems more like political theater and impressing individual senator's various constituencies--

Is anyone aware of scholarly research on the correlation between what nominees say and how they actually rule once on the bench? Perhaps I am a pollyanna but I doubt a jurist would purposely lie about what he or she believes and then reverse course once on the bench--although lifetime tenure is a pretty reassuring situation and provides on an awfully great degree of independence.

You have not explained why it would be unconstituional, in your belief, for the states to pass a law that would force a woman to have an abortion for either population or eugenics purposes.

Does the state have the right to force a woman to terminate her pregnancy? Is this a fundamental Constituional right? Or do the states have a legitimate interest in controlling or regulating reproduction?

See _Buck v. Bell 1927_. Carrie Bell possessed a mental disability.

Your reasoning also implies that a state would be permitted, under the Constituion, to sterilize someone because they posessed mental disabilities or as the result of a crime.

In terms of the history of constituional rights, the 5th Amendment did not prevent adult married women from losing their property or income throughout much of the 19th century.

The priviledges and immunities clause of the 14th Amendment does not protect the right of adult citizens to vote. (_Minor v. Happersett_ (1874)

Likewise, Myra Bradwell was prevented from joining the Illinois State Bar and practicing law. SCOTUS ruled that the 14th Amendment, under the priviledges and immunities clause, did not allow adult women to participate in the legal profession. See Bradwell v. Illinois (1872)

I bring up these cases, _Buck v. Bell_, _Minor v. Happersett_ and _Bradwell v. Illinois_, because your reasoning guts the liberty clause of the 14th Amendment.

(FYI, Seven Machos, it is not Constituional for you to drink a bunch of Drano. Physical harm to yourself that reaches the level of suicide is certainly not Constituional, or indeed, legal. You could and would be locked up in a mental hospital if you drank Drano or otherwise inflicted physical harm upon yourself.)

It is absolutely constitutional for me to drink Drano. You don't understand the difference between "unconstitutional" and "illegal." Moreover, I doubt that there are laws against drinking Drano. If there are, are they enforced? Are you suggesting that the State may put me in a mental institution if I try to commit suicide but can do nothing if I kill a fetus? Get real. You sound like a 1L at the very bottom of your class.

Dude, you don't have a constituional right to drink Drano. You don't have a constituional right to commit suicide or physically assault yourself.

We are discussing fundamental constituional rights. When I say that you do not have a constitutional right to drink Drano, I mean that no judge has or will rule this to be a fundamental contitutional right. Why don't you know this?

If you don't believe me, walk into an emergency room and tell them that you are going to drink Drano. You will be forcibly restrained and evaluated by a psychiatrist. (You can also tell any licensed counselor or social worker or a policeman that you intend to drink Drano.)

If they think you are serious, you will be held for evaluation until it can be determined that you are not a danger to yourself or others.

If you sue the state on the basis that you have a constituional right to drink Drano, you will be laughed out of court.

As no state in the U.S. allows a physically healthy individual to commit suicide, I can assume that it is illegal in your state.